person, N.J.S.A. 2C:14-2c(2). He was acquitted of the first three charges and convicted of the fourth.

The count of the indictment under which defendant was convicted charged that he had performed vaginal intercourse upon M.R., "when he knew or should have known that [M.R.] was . . . mentally defective." Defendant challenges his conviction on the ground that the trial court erred in denying his motion for a judgment of acquittal. He asserts that the evidence fails to support the conclusion that he knew or should have known that M.R. was mentally defective.

In its previous form N.J.S.A. 2C:14-1h defined the phrase "mentally defective" to mean a mental condition which rendered one incapable of "appraising" the nature of his or her conduct. By L. 1983, c. 249, 1103, the legislature substituted the word "understanding" for "appraising." According to CANNEL, CRIMINAL CODE ANNOTATED, Comment N.J.S. 2C:14-1h,

[t]he concern was that without this change the addition to 2C:14-2c(2) of a provision criminalizing sexual contact with mentally defective persons, made by the same statute, might have been construed to include even mildly retarded persons and therefore criminalize consensual sexual activity involving such persons. Senate Committee Statement to A-1844 (1983). The definition now makes it clear that persons are mentally defective within the meaning of this chapter only if incapable of understanding the nature of their conduct, i.e., that they are engaged in sexual activity. Previously they were included if unable to appraise that conduct, i.e., as being either morally right or wrong. [emphasis in original].

Whether cast in terms of "appraising" or "understanding," the definition of "mentally defective" does not lend itself to easy application. The difficulty lies with ascertaining what is meant by the "nature" of the victim's conduct. We conclude that the term is used in the statute in its broad meaning as referring to "the essential character or constitution of something." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1507 (G. & C. Merriam Company 1971). So understood, it involves an inquiry into whether or not the complainant could

appreciate the inviolability of her person and that others could not, without her consent, invade her person for carnal gratification. This was discussed in Commentary to the New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission, 194-195 (October, 1971) in the following way:

The difficult problem is to define the degree of mental deficiency or impairment which shall bring the statute into play. The Code limits criminality to situations of known mental disease or defect so serious as to render the woman "incapable of appraising the nature of her own conduct." Conditions affecting only the woman's capacity to "control" herself sexually will not involve criminal liability. Also, by specifying that the woman must lack capacity to appraise "the nature" of her conduct, we make it clear that we are not talking about appraisals involving value judgments or consideration of remote consequences of the immediate acts. The typical case that remains within the revised clause would be the case of intercourse with a woman known to the defendant to be manifestly and seriously deranged. (MPC P.O.D., p. 144 (1962)). [emphasis supplied].

We conclude from the foregoing that success of a prosecution under N.J.S.A. 2C:14-2c(2) depends upon proof of direct or circumstantial facts, unique to each case, which show that the complainant was mentally defective and either that defendant's actual knowledge of the complainant's mental defect or that the disability was so conspicuous that it could not be overlooked. In holding a defendant accountable for what he "knew or should have known," N.J.S.A. 2C:14-2c(2) expects him to know what is evident to a person of ordinary perception, learning, insight and sensitivity. With these standards, we turn to the relevant and material evidence to determine whether it supports a judgment that M.R. was mentally defective as defined by statute and, if so, whether this was something of which defendant knew or should have known.

At the time of the alleged offense M.R. was 16 years old. She was classified as educable mentally retarded and attended a special education class in Passaic High School. According to her mother and her aunt, with whom she has a close ...

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